In every state and in the federal criminal justice system, when a crime victim is killed, the law allows a family member or other representative to step into the victim's shoes and assert the victim's rights. That framework has become a routine and influential feature of modern criminal justice, embedded in statutes, constitutional provisions, and everyday courtroom practice. Yet despite its centrality, the justifications for this arrangement have received relatively little sustained scholarly attention. That gap has become more apparent following Professor Lee Kovarsky's recent article, "The Victims' Rights Mismatch," which offers a serious and thoughtful challenge to prevailing assumptions about deceased-victim representation and calls for sharply limiting victims' rights in such cases.
In a new article available on SSRN (and soon to be published in the U.C. Irvine Law Review), Professor Peter Reilly and I defend the conventional wisdom. Our article explains why a victim's death does not extinguish the justification for victim participation when that participation is exercised through a representative. Drawing on history, doctrine, and experience in actual criminal litigation, our article shows that representation of deceased victims is deeply rooted in Anglo-American law and consistent with related doctrines such as survival actions. It further demonstrates that the core justifications for victims' rights—expressive, participatory, and institutional—do not disappear when asserted through a representative. Nor does representative participation reduce sentencing to judgments of "social worth."
Finally, through a detailed examination of United States v. Boeing—the deadliest corporate crime in U.S. history, arising from two Boeing 737 MAX crashes (as I have blogged about previously here, here, and here)—our article illustrates how deceased-victim representation operates in practice as an important check on prosecutorial discretion and as a safeguard for transparency, accountability, and public confidence in the criminal justice system.
